law-condemnation | eminent domain | inverse condemnation | takings claim | fees and sanctions |
CONDEMNATION & EMINENT DOMAIN
COMPENSABILITY OF TAKINGS DAMAGES When a taking occurs, all damages associated with the taking
are not necessarily compensable, County of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004), and
“diminished value is compensable only when it derives from a constitutionally cognizable injury,” State v.
Dawmar Partners, Ltd., 267 S.W.3d 875, 878 (Tex. 2008) (per curiam). Compensability for a particular type of
condemnation damage is a question of law the Court reviews de novo. Santikos, 144 S.W.3d at 459.
RECENT EMINENT DOMAIN AND RELATED DECISIONS FROM
THE TEXAS SUPREME COURT
Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, No. 09-0901 (Tex. Aug. 26, 2011)
(Opinion by Justice Don R. Willett)(oil and gas law, no private condemnation power)
The Texas Constitution safeguards private property by declaring that eminent domain can only be exercised for
"public use." Even when the Legislature grants certain private entities "the right and power of eminent
domain," the overarching constitutional rule controls: no taking of property for private use. Accordingly,
the Natural Resources Code requires so-called "common carrier" pipeline companies to transport carbon
dioxide "to or for the public for hire." In other words, a C pipeline company cannot wield eminent domain to
build a private pipeline.
This property-rights dispute asks whether a landowner can challenge in court the eminent domain power of a
Co pipeline owner that has been granted a common-carrier permit from the Railroad Commission. The court of
appeals answered no, holding that (1) a pipeline owner can conclusively acquire the right to condemn private
property by checking the right boxes on a one-page form filed with the Railroad Commission, and (2) a
landowner cannot challenge in court whether the proposed pipeline will in fact be public rather than private. We
disagree. Unadorned assertions of public use are constitutionally insufficient. Merely registering as a common
carrier does not conclusively convey the extraordinary power of eminent domain or bar landowners from
contesting in court whether a planned pipeline meets statutory common-carrier requirements. Nothing in Texas
law leaves landowners so vulnerable to unconstitutional private takings. We reverse the court of appeals'
judgment and remand to the district court for further proceedings consistent with this opinion.
TEXAS RICE LAND PARTNERS, LTD. AND MIKE LATTA v. DENBURY GREEN PIPELINE-TEXAS, LLC; from
Jefferson County; 9th district (09-09-00002-CV, 296 SW3d 877, 09-24-09)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Willett delivered the opinion of the Court. [pdf]
Link to e-briefs: TEXAS RICE LAND PARTNERS, LTD. v. DENBURY GREEN PIPELINE-TEXAS LLC (including
briefs by several amici)
Reid Road MUD No. 2. v. Speedy Stop Food Stores, Ltd., No. 09-0396 (Tex. Mar. 11, 2011)(Johnson)(eminent
domain, determining value of condemned property)
In this case we address two evidentiary questions. The first is whether an employee of the corporate general partner of a limited
partnership qualifies to testify about the fair market value of partnership property under either the Property Owner Rule or Texas
Rule of Evidence 701. The second is whether the condemning authority in a condemnation proceeding adopted the damages
opinion of an appraiser by presenting the appraiser’s testimony and written appraisal in the special commissioners’ hearing.
Under the record before us, we answer the first question “No,” the second question “Yes,” and affirm the judgment of the court of
The trial court did not abuse its discretion by excluding the damages opinion LaBeff expressed in his affidavit. However, the court
erred by excluding Ambrose’s testimony and appraisal as to Speedy Stop’s damages.
We affirm the court of appeals’ judgment reversing the judgment of the trial court and remanding the case for further proceedings.
REID ROAD MUNICIPAL UTILITY DISTRICT NO. 2 v. SPEEDY STOP FOOD STORES, LTD.; from Harris County; 14th district (14-
07-00225-CV, 282 SW3d 652, 02-03-09)
The Court affirms the court of appeals' judgment.
Justice Johnson delivered the opinion of the Court. [pdf]
Justice Willett delivered a concurring opinion, in which Justice Lehrmann joined. [pdf]
(Justice Guzman not sitting)
View Electronic Briefs 09-0396
REID ROAD MUNICIPAL UTILITY DIST. NO. 2 v. SPEEDY STOP FOOD STORES, LTD.
SUBSTITUTED OPINION ISSUED IN BILLBOARD CONDEMNATION APPEAL
State of Texas v. Central Expressway Sign Associates, No. 08-0061 (Tex. Nov. 20, 2009)(Subst. Op. by O'Neill)
(condemnation, proper method for determining market value, admissibility of expert testimony, methods to
appraise market value of condemned property)(harmful error analysis of complaints about admission or
exclusion of evidence on appeal)
THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES, ET AL.; from Dallas County;
5th district (05 06 00003 CV, 238 SW3d 800, 08 31 07)
motion for rehearing denied
The Court's opinion of June 26, 2009 is withdrawn and the opinion of this date is issued.
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice O'Neill delivered the opinion of the Court.
(Justice Guzman not sitting)
STATE'S CONDEMNATION DAMAGES EXPERT SHOULD NOT HAVE BEEN STRUCK, COURT SAYS
State of Texas v. Central Expressway Sign Ass'n. No. 08-0061 (Tex. Jun. 26, 2009)(O'Neill)(admissibility of
expert testimony, methods of appraising value of condemned property, here billboard easement)(exclusion of
expert witness testimony was erroneous and harmful, judgment reversed)
State of Texas v. Bristol Hotel Asset Co., No. 07-0896 (Tex. May 15, 2009)(per curiam) (condemnation,
uncompensable losses, lost revenue testimony should not have been admitted)
SWBT v. Harris County Toll Road Authority, No. 06-0933 (Tex. 2009)(Jefferson)(eminent domain, county entity
immune to claim for reimbursement of costs of telephone line relocation necessitated by toll road project, SWBT
has no vested property interest in use of public way for transmission equipment).
State of Texas v. Dawmar Partners, Ltd., No. 07-0548 (Tex. Sep. 26, 2008)(per curiam)
(condemnation appeal, state prevails)
State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)(award of fees for landowner's expenses
reversed on condemnor's petition) Justice O'Neill delivered an opinion concurring in part and dissenting in part.
(would remand case to trial court for consideration of sanctions against state for late amendment of pleading)
FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008) (Phil
Johnson) (condemnation, implications of reduction of amount of land to be taken on land owner's recovery of
fees, partial nonsuit)
Justice Willett delivered an opinion concurring in part and dissenting in part.
Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, No. 06-0873 (Tex. May 16, 2008)
(Opinion by Paul Green) (intergovernmental dispute over easement for water extraction from lake,
PR Investments and Special Retailers, Inc. v. Texas, No. 04-0431 (Tex. Feb. 15, 2008)(Justice Willett)
(condemnation proceeding, effect of change in plans for condemned property,jurisdiction of trial court)
AIC Management v. Crews, No. 05-0270 (Tex. Jan 25, 2008)(O’Neill) (eminent domain, condemnation,
sufficiency of legal description, UDJA, jurisdiction of Harris County Civil Courts at Law)
COURT OF APPEALS CASES IN WHICH PETITION FOR REVIEW WAS DENIED BY
TEXAS SUPREME COURT
CASCOTT, LLC, ET AL. v. THE CITY OF ARLINGTON; from Tarrant County; 2nd district
(02-08-00042-CV, 278 SW3d 523, 02‑19‑09) (exercise of eminent domain authority to condemn the properties)
MCKINNEY INDEPENDENT SCHOOL DISTRICT v. CARLISLE GRACY LTD. AND GORDON M. GRIFFIN, JR.
REVOCABLE TRUST; from Collin County; 5th district (05-05-00625-CV, 222 SW3d 878, 04-24-07, pet. denied
Aug. 2008)(condemnation case)
STANLEY V. GRAFF v. VERNON BERRY, M.D. WHITTLE, INDIVIDUALLY AND IN HIS CAPACITY AS COUNTY
COMMISSIONER, RUFUS WARD, JR., ELMER CATON, JOSEF HAUSLER, IN THEIR CAPACITIES AS COUNTY
COMMISSIONERS, AND THE COUNTY OF RED RIVER; from Red River County; 6th district (06-07-00058-CV,
___ SW3d ___, 03-18-08, pet denied Jun 2008) (judicial notice, condemnation eminent domain road
construction, sufficiency of description, attorney's fees, official capacity)
We hold the trial court erred in granting the commissioners' motion for summary judgment. The trial court erred
in taking judicial notice of the court records in cause number 134-CV-5-93. Graff has failed to show that our
decision in Graff II, which found the description of the road in Graff I was sufficient to identify the road with
reasonable certainty, was clearly erroneous. Because the commissioners failed to prove as a matter of law that
a sixty-foot right-of-way was reasonably necessary for public travel and failed to prove as a matter of law that
the new construction is in the same location, there are genuine issues of material fact. Because we have
sustained Graff's first point of error, the award of attorney's fees must be reversed as well. We reverse the trial
court's judgment, including the award of attorney's fees, and remand this case for further proceedings
consistent with this opinion.
FORT BEND COUNTY, TEXAS v. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY; from
Fort Bend County; 14th district (14-05-01106-CV, 237 SW3d 355, 06-21-07, pet. denied Jun 2008) (Justice
O'Neill not sitting) (condemnation eminent domain, road easement, federal preemption)
Appellant, Fort Bend County, appeals the judgment awarding the Burlington Northern and Santa Fe Railroad
Company $90,756.51 as reimbursement of expenditures in the adjustment and relocation of an eligible utility
facility, required by the County's condemnation of land for a larger railroad crossing. In its sole issue, the
County argues the trial court erred in ordering the County to reimburse Burlington for its costs in improving the
crossing. Burlington contends that, assuming the court had jurisdiction, the award for the crossing was proper.
In four cross-issues, Burlington argues: (1) the trial court erred in denying its plea to the jurisdiction because
the condemnation of a roadway easement across an active passing track/staging facility is preempted under
the Interstate Commerce Commission Termination Act ("ICCTA"); (2) the County's failure to authorize the
acquisition by condemnation of the easement caused a lack of condemnation jurisdiction; (3) the trial court
erred in granting injunctive relief; and (4) the trial court erred in the statutory construction of Section 251.102 of
the Texas Transportation Code. Because we find the County is federally preempted under the ICCTA from
condemning a public crossing that cuts Burlington's passing track, we vacate the trial court's judgment and
dismiss the case.
ELDORADO PARK, LTD. v. CITY OF MCKINNEY, TEXAS; from Collin County; 11th district
(11-05-00259-CV, 206 S.W.3d 185, 11-02-06)(condemnation)
Appellant, the City of McKinney, Texas, sought to condemn property owned by appellee, Eldorado Park, Ltd., in
connection with a roadway project. The trial court appointed three special commissioners to assess Eldorado
Park's damages resulting from the condemnation. At the hearing before the special commissioners, both
parties presented expert testimony from property value appraisers on the damages issues. The expert
appraisers relied on a 1996 Federal Emergency Management Agency (FEMA) Letter of Map Revision to
determine the portion of the subject property included in the floodplain. The special commissioners entered an
award of damages to Eldorado Park.
The City appealed the special commissioners' award by filing objections with the trial court, and the trial court
placed this cause on its docket. The City designated a new expert appraiser to testify on the damages issues
at trial. The City's new expert relied on a document entitled Cottonwood Creek Master Drainage Study for the
City of McKinney (2001 Master Drainage Study) to determine the portion of the subject property included in the
floodplain. The 2001 Master Drainage Study doubled the amount of floodplain acreage in the subject
property. Eldorado Park filed a plea to the jurisdiction arguing that the City's use of the 2001 Master Drainage
Study materially changed the issues presented to the special commissioners and, therefore, deprived
the trial court of subject-matter jurisdiction. The trial court granted Eldorado Park's plea and entered a
judgment adopting the special commissioners' findings and award. The City appeals. Because the City's
designation of a new expert witness and reliance on the 2001 Master Drainage Study did not deprive the trial
court of subject-matter jurisdiction, we reverse the trial court's judgment and remand this cause for further
proceedings consistent with this opinion.
STATE OF TEXAS v. FIESTA MART, INC.; from Harris County; 14th district
(14-06-00826-CV, ___ SW3d ___, 07-03-07, pet. denied April 2008)(condemnation, inverse condemnation
claim, impaired access, relocation benefit, exhaustion of administrative remedies, lease holder)
The State of Texas brings this interlocutory appeal from a county court decision denying its plea to the
jurisdiction. In five issues, the State complains that the court erred in denying its plea to the jurisdiction
because (1) Fiesta, as a lessee of the property, does not have an ownership interest in the property being
seized, (2) Fiesta cannot recover lost profits because it has not alleged impairment of access, and (3)
Fiesta has failed to exhaust its administrative remedies in seeking relocation benefits. We affirm.
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